Following Weymouth killings, a look at the Massachusetts bail system

Monday

Editor's note: The name of a judge was misspelled and has been corrected. Also, the story has been edited to clarify that Thomas Latanowich was out of prison on probation.

Should Emanuel Lopes have been locked up prior to his alleged killing of Weymouth Police Sgt. Michael Chesna?

How about Thomas Latanowich, the suspected killer of Yarmouth Police Sgt. Sean Gannon, and John Williams, accused of fatally shooting Cpl. Eugene Cole in Maine?

The question comes up often in the wake of grisly crimes, especially when suspects – including the three suspected cop killers – face prior charges, but walk free on bail or probation.

Finger pointing ensues and blame often lands on the judicial system, criticized for failing to detain individuals who seem so clearly dangerous.

“It is clear Latanowich is a career criminal with predilection towards violence, both to complete strangers and those close to them,” wrote a group of Cape and Islands legislators in the wake of Gannon’s death on April 12.

But detaining suspects prior to conviction is not simple by design. Indeed, the Massachusetts judicial system was first established to give suspects the benefit of the doubt, known best by the maxim, “innocent until proven guilty.”

Instead, depending on the severity of the crime, suspects are released on “personal recognizance,” meaning the individual walks free and agrees to return to court when called. If their return is questionable, based on a litany of reasons, including past offenses, bail is set as an incentive.

Judges, including Superior Court Judge Timothy Feeley in Salem, have been criticized for lowering bail for suspects who are later arrested. Williams, who was arrested and charged with possessing drugs and firearms in Haverhill, had his bail lowered by Feeley in March before returning home to Maine and killing Cole, a deputy sheriff, a month later, according to police.

The decision to lower bail raised ire among some elected officials, including state Rep. Jim Lyons, R-Andover. The lawmaker has since called for Feeley’s impeachment.

But bail is not meant to be a de facto way to detain suspected criminals, a legal mechanism that predates Massachusetts as a state.

According to The Body of Liberties, the oldest compilation of Massachusetts colonial law, penned in 1641: “No mans person shall be restrained or imprisoned by any authority whatsoever, before the law hath sentenced him thereto, if he can put in sufficient securitie, bayle or mainprise, for his appearance, and good behavior in the meane time, unless it be in crimes capital and contempts in open court, and in such cases where some expresse act of court doth allow it.”

The archaic text was cited in a Massachusetts Supreme Judicial Court decision last year, which ruled defendants’ financial resources must be considered when setting bail. The decision is meant to prevent judges from using bail as a means to detain suspects, which was further enshrined when Gov. Charlie Baker signed criminal justice reform legislation into law earlier this year.

The Republican governor, who has been critical of some judges in the past, has looked beyond bail and raised questions about a separate but related facet of judicial procedures known as dangerousness hearings.

“One of the things I would like to know is do we need to change the status for a dangerousness hearing, because there are certain circumstances in which people do pursue dangerousness hearings, but they don’t do it all the time,” Baker told reporters when questioned about the Williams case in April. “If it requires a law change, we’ll work to get it passed.”

The hearings, which must be requested by district attorney offices, are an effective way to keep suspects temporarily incarcerated prior to judgment. But determining the dangerousness of a suspect is only considered for certain types of violent crimes and felonies, meaning the approach is not a catchall. And the argument falls short with defense lawyers, who argue it’s too subjective.

“When you’re talking about preventative detention, or trying to determine if someone is dangerous, you’re talking about predicting future human behavior and that’s nearly impossible to do with any degree of reliability,” said Edward P. Ryan Jr., a Leominster defense attorney.

Ryan estimates as many as 3,000 defendants across the state are currently on bail with drug offenses, mirroring the circumstances of Lopes and Williams. Lantanovich, meanwhile, was out on probation after serving time in state prison.

“Which one of them might do something as tragic as this fellow in Weymouth did? There’s no way to predict it,” he said.

Making it easier to detain defendants prior to conviction is a slippery slope, he added.

“We don’t operate like Russia or totalitarian countries where you get locked up for what you might do, or worse, what you might say,” Ryan said. “In this country, you’re presumed to be innocent and until you’re proven guilty you’re entitled to liberty.”

Eli Sherman is an investigative and in-depth reporter at Wicked Local and GateHouse Media. Email him at esherman@wickedlocal.com, or follow him on Twitter @Eli_Sherman.